Law Information

Law 22-196, the “Tipped Wage Workers Fairness Amendment Act of 2018,” was introduced in the Council and assigned Bill No. 22-913 which was referred to the Committee of the Whole. The bill was adopted on first and second readings on Oct. 2, 2018, and Oct. 16, 2018, respectively. After mayoral review, it was assigned Act No. 22-489 on Oct. 23, 2018, and transmitted to Congress for its review. D.C. Law 22-196 became effective Dec. 13, 2018.

D.C. Law 22-196. Tipped Wage Workers Fairness Amendment Act of 2018.

AN ACT

To repeal the Initiative No. 77 – Minimum Wage Amendment Act of 2018; to require the Mayor to create an easily accessible Internet website that describes the various District wage-and-hour and anti-discrimination laws, to launch a public-education campaign to raise awareness and educate the public about the rights of tipped workers, and to create and staff a tip-violation line to receive complaints specifically related to wage laws in the District; to amend the Service Improvement and Fiscal Year 2000 Budget Support Act of 1999 to require the Office of Human Rights to provide a sexual-harassment training course for employees of businesses that employ tipped workers or to allow the Office of Human Rights to certify a list of providers who may provide such training; to amend the Minimum Wage Act Revision Act of 1992 to require employers who employ tipped workers to provide their employees with a tip-out sheet each pay period and to use a third-party to prepare payroll, to require the third-party payroll preparer to report certain wage data on a quarterly basis, including the employer's tip-out policy, to the Department of Employment Services, to require the tip portal operated by the Mayor to be user-friendly to enable an employee to report easily to the Director of the Department of Employment Services an alleged wage-theft violation and to accept the submission of electronic spreadsheets with wage information instead of requiring the manual entry of such data, and to create the Tipped Workers Coordinating Council; and to amend An Act To provide for the payment and collection of wages in the District of Columbia to require that business owners or operators who employ tipped workers attend, at least once annually, training on the requirements of the District's wage-theft law, that managers who are employed by an employer that employs tipped workers attend, at least once annually, an in-person training on the requirements of the District's wage-theft law, that employers of tipped workers provide employees with the opportunity to attend training on the requirements of the District's wage-theft law, and that employers of tipped workers annually certify to the Department of Employment Services that such training requirements have been met.

BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Tipped Wage Workers Fairness Amendment Act of 2018".

(a)(1) The Mayor shall create and maintain an Internet website that states the rights and benefits to which an individual is entitled under the following District of Columbia labor and anti-discrimination laws:

(A) Contain information on how to utilize the reporting system established pursuant to section 4(b).

(B) Contain other information on how an individual may submit a labor-related or anti-discrimination complaint to the Mayor; and

(C) List resources, including contact information for legal services or community-based organizations as approved by the Mayor, that an individual may consult if the individual believes his or her rights under one or more of the labor and anti-discrimination laws listed in paragraph (1) of this subsection have been violated.

(3) The Internet website shall be:

(A) Easily accessible;

(B) User-friendly; and

(C) Printer-friendly.

(b)(1) The Mayor shall provide to all private employers a clear and concise poster, or make available an electronic version of the poster that can be printed and copied, that states:

(A) The address of the Internet website established pursuant to subsection (a) of this section;

(B) A list of the laws listed in subsection (a)(1) of this section, including which of the listed laws provides greater benefits or protections than federal law;

(C) Notice that an employee may access information and obtain a description of his or her rights under the District of Columbia laws listed on the poster;

(D) Current hourly minimum wage; and

(E) Current hourly tipped minimum wage.

(2) The poster also shall contain an electronic or digital link (such as a QR code) that provides access to the Internet website maintained pursuant to subsection (a) of this section. The electronic or digital link shall:

(A) State "Scan here for more information regarding your employment and labor rights";

(B) Not collect, analyze, or sell any personally identifiable information; and

(C) Be of sufficient size to be scanned or read easily and effectively by a digital device.

(3) An employer shall post the poster in a conspicuous place accessible to all employees in or about the premises of the employer. If there are one or more breakrooms or time clocks on the premises, an employer shall post the poster at each such location.

(4) If any of the laws listed in subsection (a)(1) of this section is amended and the amendment results in information on the poster changing, the Mayor shall provide to all private employers an updated poster or make available an electronic version of the updated poster that can be printed and copied.

(c)(1) In addition to meeting the requirements set forth in subsection (b) of this section, an employer shall print copies of the information posted on the Internet website maintained pursuant to subsection (a) of this section and compile it into a single source, such as a binder. A copy of the compiled information shall be placed at every location that a poster, as required by subsection (b) of this section, is posted.

(2) An employer shall be responsible for ensuring at least monthly that the information required to be printed and made available pursuant to paragraph (1) of this subsection is up to date and identical to the information provided on the Internet website maintained pursuant to subsection (a) of this section.

(d) An employer that complies with its obligations as set forth in subsections (b) and (c) of this section shall not be not be required to comply with the posting requirements set forth in the following laws:

(1)Section 106 of the Living Wage Act of 2006, effective June 8, 2006 (D.C. Law 16-118; D.C. Official Code § 2-220.06);

(10)Section 37 of the District of Columbia Workers' Compensation Act of 1979, effective July 1, 1980 (D.C. Law 3-77; D.C. Official Code § 32-1536).

(e) Subsection (d) of this section shall not be construed to mean that the requirements of this section are optional.

(f) The Internet website required to be maintained pursuant to subsection (a) of this section, the poster required to be provided and posted pursuant to subsection (b) of this section, and the printed information required to be made available pursuant to subsection (c) of this section shall comply with the Language Access Act of 2004, effective June 19, 2004 (D.C. Law 15-167; D.C. Official Code § 2-1931 et seq.).

(g) The Mayor shall assess a $100 fine for each day that an employer fails to meet the requirements of this section.

(a)(1) No later than 180 days after the date this section becomes applicable, the Mayor shall launch a public-education campaign to raise awareness and educate the public about the rights of tipped workers pursuant to the Minimum Wage Act Revision Act of 1992, effective March 25, 1993 (D.C. Law 9-248; D.C. Official Code § 32-1001 et seq.), An Act To provide for the payment and collection of wages in the District of Columbia, approved August 3, 1956 (70 Stat. 976; D.C. Official Code § 32-1301 et seq.), and the Accrued Sick and Safe Leave Act of 2008, effective May 13, 2008 (D.C. Law 17-152; D.C. Official Code § 32-531.01 et seq.).

(2) The campaign shall include the preparation of written materials, available in concise physical format, that state in plain language the rights of tipped workers under the laws identified in paragraph (1) of this subsection.

(3) The campaign shall place particular emphasis on communities that are most at risk for wage and labor violations and shall publicize resources available to tipped workers to protect against wage theft.

(4) The Mayor shall distribute such materials to all workplaces that employ employees paid pursuant to section 4(f) of the Minimum Wage Act Revision Act of 1992, effective March 25, 1993 (D.C. Law 9-248; D.C. Official Code § 32-1003(f)), and employers shall distribute the materials to all employees.

(b)(1) The Mayor shall create a reporting system that permits the public to report violations of the Living Wage Act of 2006, effective June 8, 2006 (D.C. Law 16-118; D.C. Official Code § 2-220.01 et seq.), the Accrued Sick and Safe Leave Act of 2008, effective May 13, 2008 (D.C. Law 17-152; D.C. Official Code § 32-531.01 et seq.), the Minimum Wage Act Revision Act of 1992, effective March 25, 1993 (D.C. Law 9-248; D.C. Official Code § 32-1001 et seq.), and An Act To provide for the payment and collection of wages in the District of Columbia, approved August 3, 1956 (70 Stat. 976; D.C. Official Code § 32-1301 et seq.).

(2) The reporting system shall:

(A) Be accessible to the public by the Internet and telephone 24 hours each day and 7 days each week for the entire calendar year;

(B) For the telephone component:

(i) Have live staff available to take complaints, answer basic questions, and provide resources during business hours; and

(ii) During non-business hours, have a voice-messaging system available on which an individual may leave his or her contact information so that his or her message can be returned;

(3) The Mayor shall review all reports collected on the reporting system on a weekly basis.

(4) The Mayor may investigate whether violations reported through the reporting system established by this subsection have occurred.

Sec. 5. Title II of the Service Improvement and Fiscal Year 2000 Budget Support Act of 1999, effective October 20, 1999 (D.C. Law 13-38; D.C. Official Code § 2-1411.01 et seq.), is amended by adding a new section 206a to read as follows:

"(a)(1) The Office shall provide a sexual-harassment training course for employees of businesses that employ an employee who is paid in accordance with section 4(f) of the Minimum Wage Act Revision Act of 1992, effective March 25, 1993 (D.C. Law 9-248; D.C. Official Code § 32-1003(f)), or shall certify a list of providers who may provide such training in accordance with the requirements set forth in this section.

"(2) The Office shall consult with groups representing victims, workers, and employers in the creation of a sexual-harassment training course.

"(3) The training shall include how to respond to, intervene in, and prevent sexual harassment by co-workers, management, and patrons.

"(4) The Office may delegate its responsibilities under this subsection to another agency subordinate to the Mayor.

"(b) Employees of businesses that employ an employee who is paid in accordance with section 4(f) of the Minimum Wage Act Revision Act of 1992, effective March 25, 1993 (D.C. Law 9-248; D.C. Official Code § 32-1003(f)), shall receive the training according to the following schedule:

"(1) Each employee shall receive training either in person or online no later than 90 days after hire, unless the employee has participated in training within the past 2 years.

"(2) Employees hired before the date this section becomes applicable shall have 2 years from that applicability date to attend training either in person or online.

"(3) Managers shall attend in-person training at least once every 2 years.

"(c) Owners or operators of businesses that employ an employee who is paid in accordance with section 4(f) of the Minimum Wage Act Revision Act of 1992, effective March 25, 1993 (D.C. Law 9-248; D.C. Official Code § 32-1003(f)), shall attend training either in person or online at least once every 2 years.

"(d) If an employee, manager, owner, or operator of a business that employs an employee who is paid in accordance with section 4(f) of the Minimum Wage Act Revision Act of 1992, effective March 25, 1993 (D.C. Law 9-248; D.C. Official Code § 32-1003(f)), participates in training from a provider certified by the Office, the employer shall submit a certification to the Office that the employee, manager, owner, or operator has completed the training required in subsection (a) of this section and shall do so no later than 30 business days after completion of the training.

"(e) The Office shall maintain records of each individual who has taken the training required by subsection (a) of this section for at least 5 years.

"(f) Each employer that employs an employee who is paid in accordance with section 4(f) of the Minimum Wage Act Revision Act of 1992, effective March 25, 1993 (D.C. Law 9-248; D.C. Official Code § 32-1003(f)), shall:

"(1) No later than July 1, 2019, file with the Office a policy outlining how employees can report instances of sexual harassment to management and to the Office;

"(2) No later than July 1, 2019, distribute the employer's sexual-harassment policy to employees and post the policy in a conspicuous place accessible to all employees in or about the premises of the employer;

"(3) No later than the effective date of this section, document instances of sexual harassment reported to management, including whether the reported harasser was a non-managerial employee, managerial employee, owner, or operator; and

"(4) No later than July 1, 2019, and annually thereafter, report to the Office the number of instances of sexual harassment reported to management and the total number of reported harassers who were non-managerial employees, managerial employees, owners, or operators.".

"(1) The term "Director" means the Director of the Department of Employment Services.".

(3) Paragraph (4) is amended by striking the phrase "term "gratuities" means" and inserting the phrase "term "gratuities" or "tips" means" in its place.

(4) A new paragraph (4A) is added to read as follows:

"(4A) The term "manager" means the person who oversees the employees in a food or beverage establishment, such as the servers, bussers, bartenders, back waiters, hosts, and hostesses, and the general operation of the establishment.".

(5) New paragraphs (7B), (7C), (7D), (7E), (7F), and (7G) are added to read as follows:

"(7B) The term "server" means an employee in a food or beverage establishment who takes orders, serves food or drinks, or both.

"(7C) The term "tip-declaration form" means a printed form provided by an employer to an employee that shows the total tips received, including the amount of the tip outs or share of a tip pool that an individual employee provided to another employee or the amount of the tip outs or share of a tip pool that the employee received from another employee, and the calculation by which the amount was determined, such as total tips received and hours worked.

"(7D) The term "tip out" means the amount or percentage of servers', bartenders', or other directly tipped employees' tips that an employee shares, due to a tip-sharing policy or tip-pooling agreement, with other employees such as bussers, bartenders, back waiters, hosts, and hostesses.

"(7E) The term "tip pool" means the combining of tips from multiple employees into a single amount for the purpose of sharing tips among employees.

"(7F) The term "tip-pool structure" means the calculation of the portion of a tip pool an employee will provide to or receive from the pool, as a percentage of total gratuities, sales, or other factor.

"(7G) The term "tip-sharing policy" means the written calculation of any tip outs or tip-pool structures that employees, delineated by job position or other factor, will provide to or receive from other employees.".

"(g) Subsection (f) of this section shall not apply to an employee who receives gratuities, unless:

"(1) The employer has provided the employee with notice of the following, included in the notice furnished pursuant to section 9(c):

"(A) The provisions of subsection (f) of this section;

"(B) If tips are not shared, that the tipped employee shall retain all tips received;

"(C) If tips are shared, the employer's tip-sharing policy; and

"(D) The percentage by which tips paid via credit card will be reduced by credit card fees;

"(2) If the employer uses tip sharing, the employer has posted the tip-sharing policy; and

"(3) All gratuities received by the employee have been retained by the employee, except that this provision shall not be construed to prohibit the sharing of gratuities among employees who customarily receive gratuities.".

"(a-1) Beginning January 1, 2020, an employer that employs an employee who is paid in accordance with section 4(f), except for a hotel employer, shall use a third-party payroll business to prepare the payroll for the employer.".

(2) Subsection (b) is amended to read as follows:

"(b) Every employer shall furnish to each employee at the time of payment of wages an itemized statement showing the following:

"(1) Date of the wage payment;

"(2) Gross wages paid;

"(3) Deductions from and additions to wages, including a separate line for gratuities;

"(4) Net wages paid;

"(5) Hours worked during the pay period;

"(6) Employee's tip-declaration form for the pay period, delineating cash tips and credit-card tips; and

"(7) Any other information as the Mayor may prescribe by regulation.".

(3) Subsection (c) is amended by adding a new paragraph (4A) to read as follows:

"(4A) The employer's tip-sharing policy, consistent with the requirements of section 4(g)(1)(B) through (D);".

(4) Subsection (d)(1) is amended by adding a new subparagraph (C) to read as follows:

"(C) Notwithstanding subparagraph (A) of this paragraph, if an employer revises its tip-out policy, the employer shall provide employees with the proposed new policy before its implementation by the employer.".

"(a)(1)(A) As of January 1, 2020, the third-party payroll business, required pursuant to section 9(a-1) to process payroll for an employer that employs an employee who is paid in accordance with section 4(f), shall submit a quarterly report to the Mayor no later than 30 days after the end of each quarter certifying that each employee was paid at least the required minimum wage, including gratuities.

"(B) Before January 1, 2020, an employer that employs an employee who is paid in accordance with section 4(f) shall submit a quarterly report to the Mayor no later than 30 days after the end of each quarter certifying that each employee was paid at least the required minimum wage, including gratuities.

"(C) A hotel employer that employs an employee who is paid in accordance with section 4(f) shall submit a quarterly report to the Mayor no later than 30 days after the end of each quarter certifying that each employee was paid at least the required minimum wage, including gratuities.

"(2) Each quarterly report submitted pursuant to this subsection shall include and itemize the following information:

"(A) Name of each employee;

"(B) Number of hours each employee worked each week during the quarter for which the report is being provided;

"(C) The total pay, including gratuities, received by each employee each week during the quarter for which the report is being provided;

"(D) Average weekly wage for each employee during the quarter for which the report is being provided; and

"(E) The employer's current tip-out policy that the employer supplied to the third-party payroll business for calculation of wages during the quarter.".

"(b)(1)(A) The Mayor shall create an Internet-based portal to permit online reporting of the quarterly wage reports required by subsection (a) of this section and to enable an employee to report a violation of this act.

"(B)(i) Before January 1, 2020, an employer shall submit its quarterly reports online unless the employer claims that online reporting creates a hardship, in which case the employer shall submit its reports in hard-copy form.

"(ii) As of January 1, 2020, the portal shall accept quarterly reports, including those in electronic spreadsheet format, filed electronically directly by a third-party payroll business or a hotel employer.

"(C) The Internet-based portal created pursuant to subparagraph (A) of this paragraph shall be user-friendly, including video tutorials, to enable an employee to report easily to the Director an alleged wage-theft violation or other violation of this act and shall allow reports to be made anonymously to the extent practicable.

"(D) Instructions on how to use the Internet-based portal shall comply with the requirements of the Language Access Act of 2004, effective June 19, 2004 (D.C. Law 15-167; D.C. Official Code § 2-1931 et seq.).

"(2)(A) The Mayor shall make available in-person training to educate third-party payroll businesses and hotel employers about the reporting requirements and the use of the Internet-based portal.

"(B) The requirement in subparagraph (A) of this paragraph that the Mayor make in-person training available shall not be construed to preclude training that is not conducted in person from occurring.".

"(a) There is established the Tipped Workers Coordinating Council ("Coordinating Council").

"(b) The Coordinating Council shall be a partnership of tipped workers, employers, and public agencies that promotes a high-quality response to tipped-worker cases of wage theft and unfair labor practices.

"(c) Members of the Coordinating Council shall consist of the following persons:

"(1) The Director of the Department of Employment Services, or his or her designee;

"(2) The Director of the Office of Nightlife and Culture, or his or her designee;

"(3) The Director of the Department of Consumer and Regulatory Affairs, or his or her designee;

"(4) The Director of the Office of Human Rights, or his or her designee;

"(5) A representative from the Restaurant Association of Metropolitan Washington;

"(6) A representative from the Hotel Association of Washington, D.C.;

"(7) Two representatives, appointed by the Mayor, from District-based organizations that engage in policy or advocacy for tipped workers; and

"(8) Three representatives, appointed by the Chairman of the Council as follows:

"(A) Two representatives from District-based organizations that engage in policy or advocacy for tipped workers; and

"(B) One representative shall be an employer that employs an employee who is paid in accordance with section 4(f), but is not part of the restaurant or hotel industry.

"(d) The term of office for each representative provided for in subsection (c)(5), (6), (7), and (8) of this section shall be for 3 years; provided, that the initial term of:

"(1) One of the representatives appointed by the Mayor from a District-based organization that engages in policy or advocacy for tipped workers and one of the representatives appointed by the Chairman of the Council from a District-based organization that engages in policy or advocacy for tipped workers shall be for 2 years; and

"(2) One of the representatives appointed by the Mayor from a District-based organization that engages in policy or advocacy for tipped workers and one of the representatives appointed by the Chairman of the Council from a District-based organization that engages in policy or advocacy for tipped workers shall be for one year.

"(e) A representative who is appointed to fill a vacancy that occurs before the expiration of a representative's full term shall serve only the unexpired portion of the term.

"(f)(1) The Coordinating Council shall hold its initial meeting no later than 90 days after the date this section becomes applicable.

"(2) At the initial meeting, one non-governmental member of the Coordinating Council shall be elected as chairperson by a majority of the Coordinating Council members.

"(g) The Coordinating Council shall establish its own procedures and requirements with respect to the place at which and the manner in which it will conduct its meetings.

"(2) Conduct regular and anonymous case reviews of all parties involved in claims of wage violations for tipped workers; and

"(3) Develop a protocol to ensure that feedback and recommendations from case reviews are incorporated into the Department of Employment Services's policies, procedures, practices, training, and decisions to re-examine investigations, when applicable.".

Sec. 7. An Act To provide for the payment and collection of wages in the District of Columbia, approved August 3, 1956 (70 Stat. 976; D.C. Official Code § 32-1301 et seq.), is amended by adding a new section 6a to read as follows:

"(a) Each business owner or operator who employs an employee who is paid in accordance with section 4(f) of the Minimum Wage Act Revision Act of 1992, effective March 25, 1993 (D.C. Law 9-248; D.C. Official Code § 32-1003(f)), shall attend either in-person or online, on a yearly basis, at least one training on the requirements of this act.

"(b) Each manager who is employed by an employer that employs an employee who is paid in accordance with section 4(f) of the Minimum Wage Act Revision Act of 1992, effective March 25, 1993 (D.C. Law 9-248; D.C. Official Code § 32-1003(f)), shall attend in-person, on a yearly basis, at least one training on the requirements of this act.

"(c) Each employer that employs an employee who is paid in accordance with section 4(f) of the Minimum Wage Act Revision Act of 1992, effective March 25, 1993 (D.C. Law 9-248; D.C. Official Code § 32-1003(f)), shall offer, at least once annually, its employees the opportunity to attend in person or to complete online at least one training on the requirements of this act.

"(d) No later than December 31 of each year, each employer subject to the requirements of this section shall provide a certification to the Department of Employment Services that all requirements of this section have been fulfilled.".

(a) Sections 3, 4, 5, 6(d)(2) and (e), and amendatory section 6a(d) within section 7 of this act shall apply upon the date of inclusion of their fiscal effect in an approved budget and financial plan.

(b) The Chief Financial Officer shall certify the date of the inclusion of the fiscal effect in an approved budget and financial plan and provide notice to the Budget Director of the Council of the certification.

(c)(1) The Budget Director shall cause the notice of the certification to be published in the District of Columbia Register.

(2) The date of publication of the notice of the certification shall not affect the applicability of these sections of this act.

Sec. 9. Fiscal impact statement.

The Council adopts the fiscal impact statement in the committee report as the fiscal impact statement required by section 4a of the General Legislative Procedures Act of 1975, approved October 16, 2006 (120 Stat. 2038; D.C. Official Code § 1-301.47a).

Sec. 10. Effective date.

This act shall take effect following approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), a 30-day period of congressional review as provided in section 602(c)(1) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 813; D.C. Official Code 1-206.02(c)(1)), and publication in the District of Columbia Register.